Holding

A second wife is an aggrieved person under s.198 CrPC and may maintain complaints under s.494, s.495 and s.498A IPC; the Andhra Pradesh amendment making those offences cognizable prevails, allowing magistrates to take cognence on police reports, and the High Court’s quashing of the 498A complaint is set aside.

Summary

The appellant, a Sub‑Inspector, married a woman (the second wife) by concealing that he was already married, collected money from her family and threatened them. The second wife filed a complaint alleging offences under Sections 494, 495, 417, 420 and 498A IPC. The High Court quashed the complaint under Section 498A, holding the second wife was not a "wife" within its meaning, but allowed the other proceedings. On appeal, the Supreme Court held that a second wife is an "aggrieved person" under s.198(1)(c) CrPC and may maintain complaints under s.494, s.495 and s.498A IPC. The Andhra Pradesh amendment making those offences cognizable prevails over the central Code, allowing the magistrate to take cognizance on a police report. Section 155(4) CrPC further renders the case cognizable because of the cognizable offence under s.420 IPC. Consequently, the High Court’s order quashing the 498A complaint was set aside and the appeal dismissed.

Issues considered

The legal status of a second wife as an "aggrieved person" under s.198(1)(c) CrPC for offences under s.494 and s.495 IPC.
Whether a second wife can file a complaint under s.498A IPC despite the marriage being void under the Hindu Marriage Act.
The effect of the Andhra Pradesh Second Amendment Act, 1992, which makes s.494 and s.495 IPC cognizable, on the applicability of s.198 CrPC.
The relevance of s.155(4) CrPC when the case involves both cognizable (s.420) and non‑cognizable offences.
The scope of the Supreme Court’s power under Article 136 to set aside a High Court order in the absence of an appeal by the State or the complainant.

Legislation cited

Code of Criminal Procedure, 1973s. 155(2), s. 155(4), s. 156, s. 198(1)(c)
Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992
Constitution of Indias. 136, s. 141, s. 200, s. 246(2), s. 254(2)
Hindu Marriage Act, 1955s. 11, s. 5(i)
Indian Penal Code, 1860s. 417, s. 420, s. 494, s. 495, s. 498A

Subjects

bigamyaggravated bigamySection 494 IPCSection 495 IPCSection 498A IPCaggrieved personcognizable offenceSection 198 CrPCArticle 136Hindu Marriage Actvoid marriagesecond wifecriminal procedure

Judgment

[2011) 9 S.C.R. 453

,.
A. SUBASH BABU A
v.
STATE OF A.P.& ANR.
(Criminal Appeal No. 1428 of 2011)

~f \\ JULY 21, 2011
B
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]

PENAL CODE, 1860:

ss. 494 and 495, rlw s. 198(1),Cr.P.C. - Bigamy with c
concealment of factum of existing marriage -'Person
aggrieved'- Husband governed by Hindu Law - Complaint
by second wife - Maintainability of - Held: Where second wife
alleges that the accused husband had married her according
" to Hindu rites despite the fact that he was already married to D
another lady and the factum of the first marriage was
concealed from her, the second wife would be an aggrieved
person within the meaning of s. 198 Cr. P.C. - Section 494
/PC does not restrict the right of filing complaint to the first
wife and there is no reason to read the said section in a E
restricted manner - The complaint can also be filed by the
person with whom the second marriage takes place which is
void by reason of its taking place during the life of the first
wife - Besides, until the declaration contemplated by s. 11 of
..... Hindu Marriage Act is made by competent court, the woman F
with whom the second marriage is solemnized continues to
be the wife within the meaning of s. 494 /PC and would be
entitled to maintain a complaint against her husband for
offences punishable ulss 494 and 495 /PC - Code of
Criminal Procedure, 1973 - s. 198 (1) - Hindu Marriage Act,
f G
• 1955 - s. 1-1 .

ss. 494, 495, 498A, 417 and 420- Complaint by second
wife against the husband - High Court quashing the
proceedfng'S'pending before the Judicial Magistrate as
/ 453 H
454 SUPREME COURT REPORTS [2011] 9 S.C.R.

A regards s. 498A holding that the complainant was not wife
within the meaning of s. 498A and was not entitled to maintain
the complaint under the said provision - HELD: High Court
was not at all justified in its order- The conclusion of the High
Court is such as to shake the conscience and sense of justice
B - Even in the absence of challenge either by the State or the I •

complainant, in exercise of power under article 136, that part
of the judgment of the High Court by which the complaint for
offence punishable uls 498A filed by the second wife is
quashed by the High Court is set aside and the charge-sheet
·C submitted by the 10 shall stand revived - Constitution of India,
1950 - Article 136.

CODE OF CRIMINAL PROCEDURE, 1973

s. 156 rlw s.198 and First Schedule (as amended by
D Andhra Pradesh Act 3 of 1992) -Offences punishable ulss
494 and 495 !PC made cognizable and non-bailable in the
State of Andhra Pradesh - Held: The amendment made shall
prevail in the State of Andhra Pradesh notwithstanding the fact
that in the Code of Criminal Procedure, offences ulss 494 and
E 495 are treated as non-cognizable offences - Once First
Schedule to the Code of Criminal Procedure, 1973 stands
amended and offences punishable u/ss 494 and 495 /PC are
made cognizable offences, those offences will have to be
regarded as cognizable offences in the State of Andhra
F Pradesh for all purposes of the Code of Criminal Procedure,
1973 including for the purpose of s.198 thereof - Therefore,
as the offences have been made cognizable offences in the
State of Andhra Pradesh, the same will have to be dealt with
as provided ul s 156 CrPC - Constitution of India, 1950 -
G Articles 246 (2), 254 (2), 254 (4) - Seventh Schedule - List
Ill, Entry 2.
s. 155(4) - Case relating to two or more offences of which
at least one is cognizable - Held: If the police files a charge-
sheet in such a case, the court can take cognizance also of
H
A. SUBASH BABU v. STATE OF A.P.& ANR. ·455

non-cognizable offence along with the cognizable offe~ce by A
virtue ofs. 155 (4).

CONSTITUTION OF IND/A, 1950:

/' Articles 246 (2) and 254 (2) - Seventh Schedule - List
Ill, Entry 2- By Andhra Pradesh Act 3of1992, First Schedule B
to Cr. PC amended and ss. 494 and 495 /PC made
cognizable and non-bailable in the State of Andhra Pradesh
- Held: If a law passes a test of Clause (2) of Article 254, it
will make Clause (1) inapplicable to it - To the general rule
laid down in Clause (1), Clause (2) engrafts an exception, viz. c
if the President assents to a State Law which has been
reserved for his consideration as required by Article 200, it
will prevail notwithstanding its repugnancy to an earlier law of
• the Union - Code of Criminal Procedure (Andhra Pradesh
Second Amendment) Act, 1992 (A.P. Act 3of1992) received D
\the assent of the President - Constitutional law - Rule of
repugnancy.

Article 136 - Scope of - Held: The power under Article
136 is plenary power exercisable outside the purview of
E
ordinary law to meet the demand of justice - It ,is meant to
supplement the existing legal frame work - It is conceived to
'· meet situations which cannot be effectively and appropriately
tackled by the existing provisions of law - Supreme Court
" ""' while entertaining an appeal by grant of special leave has
F
power to mould relief in favour of the respondents
notwithstanding the fact that no appeal is filed by any of the
respondents challenging that part of the order which is against
them - Further, the power can be exercised by Supreme
! Court in favour of a party even suo motu when it is satisfied
that compelling grounds of its exercise exist. G

A complaint was filed against the appellant, a Sub-
Inspector of Police, that by representing to the
complainant (respondent no. 2) and her parents that his
first wife had died leaving behind two children, he married H
456 SUPREME COURT REPORTS [2011] 9 S.C.R.

A with the complainant on 9.10.1994; that the appellant
collected Rs.28,000/· from the father of the complainant
1
and further demanded a sum of Rs.20,000/- from him,
which he declined and the appellant threatened the
complainant and her father with dire consequences. The .
B FIR was lodged on 26.5.1995. A charge-sheet was
.,
submitted in the court of Judicial Magistrate for
commission of offences punishable u/ss 494, 495, 417,
420 and 498-A IPC. In the petition filed by the appellant
seeking to quash the proceedings against him, the High
c Court held that as respondent no. 2 was the second wife
and prima facie the marriage between her and the
appellant was void, no offence punishable u/s 498-A IPC
was made out. However, the High Court sustained the
proceedings as regards other offences.
•
D In the instant appeal filed by the husband, it was
. contended for the appellant th1t the Magistrate could not
have taken cognizance of offences punishable u/ss. 494
and 495 IPC on the basis of the police report submitted !
by the Investigating Officer because though the State ·
E legislation amended the First Schedule to the Code of
Criminal Procedure, 1973 by making the offences
punishable u/ss. 494 and 495 IPC cognizable, the
legislation made by Parliament in respect of s.198 of the
Code of Criminal Procedure remained the same and in
F the event of any repugnancy between the two
legislations, the legislation made by Parliament would
prevail; that the High Court failed to notice that u/s
198(1)(c) CrPC only a legally wedded wife or someone on
her behalf as mentioned in the said section could make
G a complaint to Magistrate for the offences punishable u/ ..
ss. 494 and 495 IPC and as, in the instant case, the
complaint was made by respondent no. 2 who was
claiming to be the second wife of the appellant and that
too to the police and not in the court, the proceedings
H
A. SUBASH BABU v. STATE OF A.P.& ANR. 457

.nitiated for alleged commission of those offences should A
nave been quashed. [para 7]
Disposing of the appeal, the Court
HELD: 1.1 It cannot be said that respondent no. 2 is
not an aggrieved person so far as commission of B
offences punishable u/ss. 494 and 495 IPC is concerned.
As far as s.494 IPC is concerned, the criminality attaches
to the act of second marriage either by a husband or by
a wife who has a living wife or husband, in a case in which
second marriage is void by reason of its taking place c
during the life of such husband or wife. When a law, such
as s.11 of Hindu Marriage Act, 1955 declares that a
second marriage by a husband, who has living wife, with
another woman is void, for breach of s.5 (i) of the said
Act, it brings/attaches several legal disabilities to the o
woman with whom the second marriage Js performed.
[para 10) [472-H; 473-A-E-G]
S.Radhika Sameena Vs. Station House Officer, 1997
Criminal Law Journal 1655 - referred to.
E
1.2 Section 494 IPC is intended to achieve laudable
object of monogamy. This object can be achieved only
by expanding the meaning of the phrase "aggrieved
person". For variety of reasons the first wife may not
choose to file complaint against her husband. Non-filing F
of the complaint u/s 494 IPC by the first wife does not
mean that the offence is wiped out and monogamy
sought to be achieved by means of s. 494 merely remains
in statute book. Having regard to the scope, purpose,
, context and object of enacting s.494 and also the
• prevailing practices in the society sought to be curbed G
by it, there is no manner of doubt that the complainant
should be an aggrieved person. [para 10] [474-E-H; 475-
A-B]
1.3 Section 198(1 )(c) of the Cr.P.C., amongst other H
458 SUPREME COURT REPORTS [2011] 9 S.C.R.
...
A things, provides that where the person aggrieved by an
offence punishable u/s 494 or s.495 IPC is the wife,
complaint on her behalf may also be filed by her father,
mother, sister, son, daughter etc. or with the leave of the
court, by any other person related to her by blood,
I •
E; marriage or adoption. [para 10] [475-A-C]

Gopa/ Lal Vs. State of Rajasthan (1979) 2 SCC 170 -
referred to.

1.4 Though s. 11 of the Hindu Marriage Act provides
C that any marriage solemnized, if it contravenes the
conditions specified in Clause (i) of s. 5 of the said Act,
shall be null and void, it also provides that such marriage
may on a petition presented by either party thereto, be
so declared. Though the law specifically does not cast
D obligation on either party to seek declaration of nullity of
marriage and it may be open to the parties even without
recourse to the court to treat the marriage as a nullity,
such a course is neither prudent nor intended and a
declaration in terms of s.11 of the Hindu Marriage Act will
E have to be asked for, for the purpose of precaution and/
or record. Therefore, until the declaration contemplated
by s.11 of the Hindu Marriage Act is made by a competent
court, the woman with whom second marriage is
solemnized continues to be the wife within the meaning i. •
F of s. 494 IPC and would be entitled to maintain a
complaint against her husband. [para 1OJ [475-C-F]

1.5 Even otherwise, the second wife suffers several
legal wrongs and/or legal injuries when the second
marriage is treated as a nullity by the husband arbitrarily,
'
G without recourse to the court or where declaration
sought is granted by a c·ompetent court. The expression
"aggrieved person" denotes an elastic and an elusive
concept. It cannot be confined within the bounds of a
rigid, exact and comprehensive definition. Its scope and
H

-
A. SUBASH BABU v. STATE OF A.P.& ANR. 459

rneaning depends on diverse, variable factors such as A
the content and intent of the statute of which .
contravention. is alleged, the specific circumstances of
the case, the nature and extent of complainant's interest
and the nature and the extent of the prejudice or injury
suffered by the complainant. [para 1O] [475-G-H; 476-A· B
B]

1.6 Section 494 IPC does not restrict right of filing
complaint to the first wife and there is no reason to read
the said section in a restricted manner; nor does it say C
that the complaint for commission of offence under the
said section can be filed only by wife living and not by
the woman with whom subsequent marriage takes place
during the life time of the wife living and which marriage
is void by reason of its taking place during the life of such
wife. The complaint can also be filed by the person with D
whom second marriage takes place which is void by
reason of its taking place during the life of first wife. [para
10] [476·8-D]
1.7 A bare reading of the complaint, in the instant E
case, together with statutory provisions, makes it
abundantly clear that the appellant having a wife living,
married with respondent no. 2 by concealing from her the
fact of former marriage and, therefore, her complaint
against the appellant for commission of offence F
punishable u/ss 494 and 495 IPC is, maintainable and
cannot be quashed on this ground. [para 10] [476-E]

1.8 Section 495 IPC provides that if a person
committing the offence defined in s. 494 IPC conceals
from the person with whom subsequent marriage is G
contracted, the fact of the former marriage, the said
person is liable to be punished as provided therein. The
offence mentioned in s.495 is an aggravated form of
bigamy provided in s. 494. The circumstance of
aggravation is the concealment of the fact of the former H
460 SUPREME COURT REPORTS [2011] 9 S.C.R.

A marriage to the person with whom the second marriage
is contracted. Since the offence u/s 495 is in essence
bigamy, it follows that all the elements necessary to
constitute that offence must be present here also. Section
495 begins with the words "whoever commits the offence
B defined in the last preceding Section ... " The reference to j '

s.494 in s.495 makes it clear that s.495 IPC is extension
of s.494 and part and parcel of it. The concealment
spoken of in s.495 would be from the woman with whom
the subsequent marriage is performed. Therefore, the
,.... wife with whom the subsequent marriage is contracted
>J
after concealment of former marriage would also be
entitled to lodge complaint for commission of offence
punishable u/s 495. [para 11) [476-G-H; 477-A-D]

1.9 Where the second wife alleges that the accused
D husband had married her according to Hindu rites
despite the fact that he was already married to another
lady and the factum of the first marriage was concealed
from her, the second wife would be an aggrieved person
within the meaning of s. 198 Cr. P.C. If the woman with
E whom the second marriage is performed by concealment
of former marriage is entitled to file a complaint for
commission of offence u/s 495, there is no reason why
she would not be entitled to file complaint u/s 494 more
particularly when s.495 IPC is extension and part and
F parcel of s.494. [para 11) [477-0-F]
1.10 Therefore, it is held that the woman with whom
second marriage is contracted by suppressing the fact
of former marriage would be entitled to maintain
G complaint against her husband u/ss 494 and 495 IPC.
[para 11] [477-G]
2.1 Part I of the First Schedule to the Code of Criminal
Procedure relating to offences under the Penal Code inter
alia mentions that ss. 494 and 495 are non-cognizable. As
H ss. 494 and 495 are made non-cognizable, a Police Officer
A. SUBASH BABU v. STATE OF A.P.& ANR. 461

i111ould not have power to investigate those cases without A
the order of a Magistrate, having a power to try such ·
cases or commit such cases for trial as provided u/s
155(2) of the Code. However, the Legislative Assembly of
the State of Andhra Pradesh enacted the Code of
Criminal Procedure (Andhra Pradesh Second B
Amendment) Act, 1992, by which the First Schedule to the
Code of Criminal Procedure came to be amended and the
offences punishable u/ss. 494 and 495 IPC were made
cognizable and non-bailable in the State. What is relevant
to be noticed is that the Code of Criminal Procedure c
(Andhra Pradesh Second Amendment) Act, 1992 was
reserved by the Governor of Andhra Pradesh for
consideration and assent of the President. After the
Presidential assent was received, the Amending Act of
1992 was published in the Andhra Pradesh Gazette Part 0
IV•B (Ext.). Thus, ss. 494 and 495 IPC are cognizable
offences so far as State of Andhra Pradesh is concerned.
[para 13] [478-G-H; 479~C-H; 480-A]
Mavuri Rani Veera Bhadranna Vs. State of A.P. and Anr.
2007 (1) ALO (Crl.) 13 (A.P.) - disapproved. E
2.2 The Amending Act of 1992 is on the subject which
is already in existence in the Code of Criminal Procedure,
1973. However, in view of Clause (2) of Article 254 of the
Constitution, an undoubted power to legislate, of course F
subject to assent of the President on the subject already
in existence, is available to the State Legislature. Clause
(1) of Article 254 is operative subject to provisions of
Clause (2). If a law passes a test of Clause (2), it will make
Clause (1) inapplicable to it. To the general rule laid down
in Clause (1 }, Clause (2) engrafts an exception, viz. that G
if the President assents to a State Law which has been
reserved for his consideration as required by Article 200,
it will prevail notwithstanding its repugnancy to an earlier
law of Union. Clause (2) provides for curing of
repugnancy which would otherwise invalidate a State law H
462 SUPREME COURT REPORTS [2011] 9 S.C.R.

P. which is inconsistent with a Central law or an existing law.
[para 14] [480-H; 481-A-D]

2.3. Once First Schedule to the Code of Criminal
Procedure, 1973 stands amended and offences
B punishable u/ss 494 and 495 IPC are made cognizable
offences, those offences will have to be regarded as
' .
cognizable offences in the State of Andhra Pradesh for
all purposes of the Code of Criminal Procedure, 1973
including for the purpose of s.198 thereof. Section
C 198(1)(c), after the Amendment made by the Code of
Criminal Procedure(Andhra Pradesh Second
Amendment) Act, 1992 cannot be interpreted in isolation
without referring to the fact that offences u/ss. 494 and
495 IPC have been made cognizable so far as the State
of Andhra Pradesh is concerned. Consequently, the bar
D imposed by operative part of sub-s. (1) of s. 198 CrPC
beginning with the words "No Court shall take
cognizance of an offence punishable under Chapter XX
of the Indian Penal Code except upon a complaint made
by some person aggrieved by the offence" gets lifted so
E far as offences punishable u/s 494 and 495 IPC are
concerned. As those offences have been made
cognizable offences in the State of Andhra Pradesh
since 1992, the same will have to be dealt with as
provided in s.156 CrPC.[para 14) [482-0-H; 483-A-C]
F
2.4. Even otherwise, where the case involves one
cognizable offence also alongwith non-cognizable
offences, it should not be treated as a non- cognizable
case for the purpose of sub-s.(2) of s.155 CrPC and that
G is the intention of legislation which is manifested in .
s.155(4) CrPC. The Division Bench of the High Court has
considered the effect of s. 155(4) CrPC and thereafter held
that the bar u/s. 198 would not be applicable as the
complaint lodged before police for offence punishable
..
u/s 494 IPC also related to other cognizable offences and
H
A. SUBASH BABU v. STATE OF A.P.& ANR. 463

if police· files a charge sheet, the court can take· A
::ognizanc~ also of offence u/s 494 along with other
cognizable offences by virtue of s.155 (4) CrPC. [para 14]
[483-D-H; 484-A-C]

2.5. In the instant case, in the charge sheet it is
8
mentioned that the appellant has also committed offence
punishable u/s 420 IPC which is cognizable and,
therefore, this is a case which relates to two or more
offences of which at least one is cognizable and,
therefore, the case must be deemed to be cognizable
case notwithstanding that the other offences are non- C
cognizable. [para 15) (484-E-F]

3.1 The High Court was not justified at all in quashing
the proceedings initiated against the appellant u/s 498A
IPC on the ground that respondent no. 2 was not wife D
within the meaning of s.498A and was not entitled to
maintain complaint under the said provision. In view of.
the salutary provisions of Article 141 of the Constitution,
the law declared by this Court in the case of Reema
Aggarwal* was binding on all courts including the single E
Judge of the High Court, who decided the instant case.
The High Court has completely misdirected itself in
quashing the proceedings for the offence punishable u/
s 498A of IPC. The finding recorded by the High Court that
respondent no. 2 is not the wife within the meaning of s. F
498A IPC runs contrary to law declared by this Court in
case of Reema Aggarwal. [para 18) [487-D-G]
* Reema Aggarwal Vs. Anupam and others 2004 (1)
• SCR 378 =(2004) 3 sec 199 - relied on.
G
3.2 There may be several reasons due to which the
State might not have challenged that part of the Judgment
of the single Judge by which he quashed the complaint
filed by respondent no. 2 u/s 498A IPC. So also because
of several reasons such as want of funds, distance, non- H
464 SUPREME COURT REPORTS [2011] 9 S.C.R.

A availability of legal advice, etc. the original complainant
might not have approached this Court to ch~llenge that
part of the judgment of the single Judge which is quite
contrary to the law declared by this Court. However, this
Court while entertaining an appeal by grant of special
B leave has power to mould relief in favour of the
..
respondents notwithstanding the fact that no appeal is
filed by any of the respondents challenging that part of
the order which is against them. To notice an obvious
error of law committed by the High Court and thereafter
"'
.., not to do anything in the matter would be travesty of
justice. This Court while disposing of an appeal arising
out of grant of special leave can make any order which
justice demands and one who has obtained illegal order
would not be justified in contending before this Court that
in absence of any appeal against illegal order passed by
0
the High Court the relief should not be appropriately
moulded or that the finding recorded should not be upset
by this Court. [para 18] [487-G-H; 488-A-D]

Chandrakant Patil Vs. State 1998 (1) SCR 447 =(1998)
E 3 SCC 38 - relied on.

3.3. It is the firm proposition of law that while
exercising appellate jurisdiction, the Supreme Court has
power to pass any order. The power under Article 136 is
F meant to supplement the existing legal frame work. It is
conceived to meet situations which cannot be effectively
and appropriately tackled by the existing provisions of
law. This Court feels that absence of challenge either by
State or by the original complainant should not prevent
G this Court from doing justice between the parties by
restoring the complaint filed by respondent no. 2 u/s 498A
IPC on the file of the Magistrate. The conclusion arrived
at by the High Court is such as to shake the conscience
and sense of justice and, therefore, it is the duty of this
Court to strike down the finding recorded with respect to
H
A. SUBASH BABU v. STATE OF A.P.& ANR. 465

the offence punishable uls 498A, irrespective of A
technicalities. The judgment of the High Court quashing
the proceedings initiated by the Magistrate for
commission of offence punishable uls 498A is tainted
with serious legal infirmities and is founded on a legal
construction which is wrong. [para 19] [489-A-F] B

3.4. The appellate power vested in the Supreme Court
under Article 136 is not to be confused with the ordinary
appellate power exercised by appellate courts and
appellate tribunals under specific statutes. It is plenary C
power exercisable outside the purview of ordinary law to
meet the demand of justice. Article 136 is a special
jurisdiction. It is residuary power. It is extraordinary i11 its
amplitude. [para 19] [489-G-H; 490-A]

Ramakant Rai Vs. Madan Rail 2003 (4) Suppl. SCR 17 D
= (2003) 12 SCC 395; Arunachalam Vs. P.S.R. Sadanatham
1979 (3) SCR 482 = (1979) 2 sec 297 and P. S.R.
Sadanatham Vs. Arunchalam (1980) 3 SCC 141 - followed

3.5. Further, the powers under Article 136 can be E
exercised by the Supreme Court, in favour of a party
even suo motu when the Court is satisfied that compelling
grounds for its exercise exist. Where there is manifest
injustice, a duty is enjoined upon this Court to exercise
its suo motu power by setting right the illegality in the F
judgment of the High Court as it is well settled that
illegality should not be allowed to be perpetuated and
failure by this Court to interfere with the same would
amount to allow illegality to be perpetuated. When an
apparent irregularity is found by this Court in the order G
• passed by the High Court, the Supreme Court cannot
ignore substantive rights of a litigant while dealing with
the cause pending before it. There is no reason why the
relief cannot be and should not be appropriately moulded
while disposing of an appeal arising by grant of special
H
466 SUPREME COURT REPORTS [2011] 9 S.C.R.

'.
;., leave under Article 136 of the Constitution. (para 19] (490-
A·D]
3.6. Therefore, that part of the impugned judgment by
which the complaint filed by respondent no. 2 u/s 498A
IPC is quashed by the High Court is set aside and the ' •
13
complaint lodged by respondent no. 2 u/s 498A IPC as
well as charge sheet submitted by the Investigating
Officer for the same shall stand restored/revived. [para
20-21] (490-E·G]
c Case Law Reference:
2007 (1) ALO (Crl.) 13 (A.P.) disapproved para 5
1997 Criminal Law Journal 1655 referred to para 5
(1979) 2 sec 110 referred to para 10
D
2004 (1 ) SCR 378 relied on para 16
2004 (1 ) SCR 378 relied on para 16
1998 (1) SCR 447 relied on para 19
E
1998 (1) SCR 447 relied on para 19
2003 (4) Suppl. SCR 17 followed para 19
1979 ( 3 ) SCR 482 followed para 19
F (1980) 3 sec 141 followed para 19
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1428 of 2011.

From the Judgment & Order dated 26.02.2010 of the High •
G Court of Andhra Pradesh at Hyderabad in Crl. P. No. 2426 of ..
2005.

D. Rama Krishna Reddy, D. Bharathi Reddy for the
Appellant.
H
A. SUBASH BABU v. STATE OF A.P.& ANR. 467

·~ Gaurav Pachnanda, Sidhant Goel, Raheel Kohli, Y. Ali, D. A
Mahesh Babu, P. Venkat Reddy, Anil Kumar Tandale for the
Respondents.

The Judgment of the Court was delivered by

J.M. PANCHAL, J. 1. Leave granted. B

2. This appeal by grant of Special Leave, questions the
legality of Judgment dated 26.02.2010, rendered by the learned
Single Judge of the High Court of Judicature, Andhra Pradesh
in Criminal Petition No. 2426 of 2005 by which the prayer c
made by the appellant, a Police Officer, to quash the
proceeding in C.C. No. 820 of 1996 initiated for commission
of offences punishable under Sections 498A, 494, 495, 417
and 420 IPC, has been partly allowed by quashing proceedings
_, insofar as offence punishable under Section 498A IPC is D
concerned, whereas the proceedings relating to the offences
punishable under Sections 494, 495, 417 and 420 IPC are
ordered to continue against the appellant. :

3. The appeal arises in the following circumstances:-
E
The respondent no. 2 is the original complainant. According
to her, the petitioner who is Sub-Inspector of Police, cheated
her and her parents by stating that his first wife had died after
delivering two children who are studying and staying in a hostel,
" ·~ even though his first wife by name Sharda is very much alive F
and living with him at Avanthinagar near Erragadda and thus
by making false and fraudulent representation, the appellant
married with her at Yadagirigutta on 09.10.1994. The case of
the respondent no. 2 is that the appellant had collected total
amount of Rs.28,000/- from her father towards hand loan on the G
~ • false plea that he was co~structing his own house at Borabanda
and the appellant further demanded a sum of Rs.20,000/- from
her father and when her father expressed inability to pay the
amount, the appellant threatened_ the complainant and her father
with dire consequences by showing his licensed revolver.
H
468 SUPREME COURT REPORTS [2011] 9 S.C.R

A According to the complainant, several times the appellant had ~

tried to snatch away gold ornaments put on by her by
threatening her with dire consequences and had demanded
gold ornaments together with cash of Rs.15,000/- from her
parents. The case of the respondent no. 2 is that when
B additional demand was not fulfilled the appellant had threatened
her and her father again by saying that he would wipe out the
' .
evidence of his marriage with the complainant which had taken
place at Yadagirigutta by destroying all the photographs and
negatives and would walk out of her life. Thus feeling aggrieved
c by the acts of the appellant in cheating her, committing bigamy
and meting out cruelty to her for dowry, etc., the respondent no.
2 lodged FIR dated 26.05.1995 with Ranga Reddy Police
Station, Balanagar and prayed to take appropriate action
against the appellant for alleged commission of offences under
Sections 498A and 420 IPC. ,..
D
4. The Investigating Officer, investigated the FIR lodged by
the respondent no. 2 and submitted charge sheet in the Court
of learned Judicial Magistrate, First Class, Hyderabad, West
and South Court, RR.District at Kothapet, Sarunagar for
E commission of offences punishable under Sections 494, 495,
417, 420 and 498A IPC. On receipt of the charge sheet the
learned Magistrate took cognizance of the offences and
summoned the appellant. The record shows that earlier Criminal
Petition No. 812 of 2001 was filed by the appellant before the ,,
F High Court to quash the proceedings initiated pursuant to C.C. '
No. 820 of 1996 pending on the file of the learned Judicial
Magistrate. However, the said petition was withdrawn by the
appellant and therefore the petition was dismissed by the High
Court vide order dated 09.04.2005 reserving liberty to the
G appellant to file a fresh petition in case of necessity. After few •
days thereof, the appellant filed Criminal Petition No. 2426 of
2005 in the High Court for quashing the proceedings in the
Criminal Case pending before the learned Magistrate. The
record does not indicate as to why Criminal Petition No. 812
H of 2001 filed by the appellant in which similar reliefs as claimed
A. SUBASH BABU v. STATE OF A.P.& ANR. 469
[J.M. PANCHAL, J.]

·in Criminal Petition No. 2426 of 2005, were claimed, was A
withdrawn and which were the new/additional circumstances/
grounds which prompted the appellant to file Criminal Petition
No. 2426 of 2005. The said petition was filed mainly on the
ground that the proceedings against the appellant were
registered for commission of above mentioned offences on the B
basis of charge sheet submitted by the Sub-Inspector of Police,
Women Police Station, Amberpet, R.R. District and not on the .
basis of complaint made by the aggrieved person within the
meaning of Section 198 of the Code. According to the appellant
the person aggrieved by alleged commission of offences under c
Sections 494 and 495 is his wife and cognizance of those
offences could have been taken only on the basis of the
complaint filed by his wife in the Court or by someone on her
behalf as contemplated by Section 198A (1)(c) of the Code,
and therefore, the learned Magistrate could not have taken
0
cognizance of those offences on the basis of submission of
charge sheet by Sub-Inspector of Police on the basis of the
investigation into the FIR lodged by the respondent No. 2 who
·is not the aggrieved person within the meaning of Section 198
of the Code. It was pleaded that there was no averment that
pursuant to deception or fraudulent or dishonest inducement E
made by the appellant, there was any delivery or destruction
of property belonging to the original complainant and therefore
Section 420 IPC was not attracted. It was the case of the
appellant that the provision of Section 498A was also not
attracted because the respondent no. 2 was not the wife of the F
appellant. It was also the case of the appellant that Section 417
IPC merged into offence under Section 495 IPC which is a
graver offence than Section 417 and as there were no
allegations constituting offence under Section 417 !PC, the
proceedings initiated for alleged commission of the offences G
should be quashed.

5. The High Court considered the submissions advanced.
at the Bar as well as the provisions of Sections 198(1)(c) of
the Code of Criminal Procedure, Section 494 and 495 IPC and H
..
470 SUPREME COURT REPORTS [2011] 9 S.C.R.

A ·the Judgment of Division Bench of Andhra Pradesh High Court ••
in Mavuri Rani Veera Bhadranna Vs. State of A.P. and Anr.
2007 (1) ALO (C~I.) 13 (A.P.) and concluded that the Division
Bench in Mavur/ Rani Veera Bhadranna (supra) had taken
note of the fact that the offence punishable under Section 494
B IPC as amended by the State of Andhra Pradesh was made ,'
cognizable, and though there was no corresponding
amendment to Section 198 of the Criminal Procedure Code,
the investigating agency was entitled to investigate, and the
Magistrate was not precluded from taking cognizance of the
c said offence on report filed by the police. Having so concluded
the Division Bench proceeded to quote part of the Judgment
in Mavuri Rani Veera Bhadranna (supra) and after noting
contentions on behalf of the parties proceeded to consider the
decision in the case of S.Radhika Sameena Vs. Station
D
House Officer, 1997 Criminal Law Journal 1655 and held that ..
the decision of the Division Bench in Mavuri Rani Veera
Bhadranna (supra) was holding the field with regard to
competency of the police to file charge sheet and competency
of the Magistrate to take cognizance of the offences punishable
under Sections 494 and 495 IPC on the report filed by the
E police. The High Court further concluded that taking cognizance
of the offences punishable under Sections 417, 420, 494 and
495 IPC was in accordance with law, but the victim i.e. the
respondent no. 2 in the present case was second wife and
therefore prima facie marriage between appellant and the
F second respondent was void and therefore, offence under
}
"'
Section 498A IPC was not made out against the appellant.

6. In view of the above mentioned conclusions, the learned
Single Judge of the High Court by the impugned Judgment
G partly accepted the petition filed by the appellant under Section •
482 of the Code of Criminal Procedure by quashing the
proceedings in C.C.No. 820 of 1996 on the file of the learned
Judicial Magistrate, First Class, West and South, Kothapet,
R.R. District, insofar as offence punishable under Section 498A
H IPC is concerned, whereas the prayer made by the appellant
A. SUBASH BABU v. STATE OF A.P.& ANR. 471
[J.M. PANCHAL, J.]
to quash the proceedings insofar as the offences punishable A
under Sections 494, 495, 417 and 420 IPC, are concerned, is
rejected, giving rise to the instant appeal.

7. The learned Counsel for the appellant argued that the
,~ learned Magistrate could not have taken cognizance of offences
8
under Sections 494 and 495 IPC on the basis of the police.
report submitted by the Investigating Officer because though the
State legislation amended the First Schedule to the Code of
Criminal Procedure, 1973 by making the offences under
Section 494 ad 495 IPC cognizable, the legislation made by C
the Parliament in respect of Section 198 of the Code of
Criminal Procedure remained the same and in the event of any
repugnancy between the two legislations, the legislation made
by the Parliament would prevail. It was emphasized that Section
198 A inserted by Section 5 of the Act 46 of 1983 with effect
from 25.12.83 provides that no Court shall take cognizance of D
an offence punishable under Section 498A of the Indian Penal
Code except upon a·police report of facts which constitute such
offences or upon a complaint made by the person aggrieved
by the offence or by her father, mother, brother, sister or by her
father's, her mother's, brother or sister or with the leave of the E
Court by any other person related to her by blood, marriage or
adoption, but no provision is made to enable a court to take
cognizance of offences punishable under Sections 494 and 495
of the Indian Penal Code upon police report and therefore the
proceedings pending before the learned Magistrate in respect F
of those offences should have been quashed. Referring to
Section 198(1 )(c) which inter alia provides that no Court shall
take cognizance of an offence punishable under Chapter XX
of the Indian Penal Code except upon a complaint made by a
person aggrieved, where the person aggrieved by an offence G
' punishable under Section 494 or Section 495 of the Indian
Penal Code, is the wife etc., it was pleaded that in the instant
case no complaint was made to the Court but was made to the
police and on the basis of charge sheet, the Magistrate had
taken cognizance of the offences which is contrary to Section H
472 SUPREME COURT REPORTS [2011] 9 S.C.R.

A 198 of the Code and is illegal. What was asserted was that the
High Court failed to notice that under Section 198(1)(c) of the
Criminal Procedure Code only a legally wedded wife or
someone on her behalf as mentioned in the said Section can
make a complaint to Magistrate for the offences under Section
B 494 and 495 IPC and as admittedly the complaint was made
by the respondent no. 2 who is claiming to be second wife of
the appellant herein and that too to the police and not in the
Court, the proceedings initiated for alleged commission of
those offences should have been quashed. In support of above
C stated contentions, the learned Counsel for the petitioner placed
reliance on the decision in Mavuri Rani Veera Bhadranna
(Supra).

8. On the other hand, the learned Counsel for the
respondents argued that by Code of Criminal Procedure
D (Andhra Pradesh Second Amendment) Act, 1992, the offences
under Sections 494 and 495 have been made cognizable in
the State of Andhra Pradesh, and therefore the respondent No.
2 who is aggrieved person so far as commission of offences
punishable under Sections 494 and 495 IPC are concerned,
E was justified in lodging FIR with the police and the police after
investigation, was justified in submitting charge sheet cm the
basis of which proceedings are pending before the learned
Magistrate in respect of alleged commission of offences by the
appellant under Section 494, 495, 417, 420 and 498A IPC. The
F contention by the learned Counsel for the respondents was that
198(1 )(c) of the Code of Criminal Procedure will have to be read
in the light of the amendment made in the Code by the State
Legislature and therefore the learned Magistrate did not
commit any error in taking cognizance of the offences on the
G basis of charge sheet submitted by the Investigating Officer.
9. This Court has heard the learned Counsel for the parties
at length and also considered the documents forming part of
the appeal.

H 10. The contention that the respondent no. 2 is not an
A. SUBASH BABU v. STATE OF A.P.& ANR. 473
[J.M. PANCHAL, J.]
.
_,
aggrieved person so far as commission of offences punishable A
under Sections 494 and 495 IPC is concerned, has no
substance and cannot be accepted: Section 494 of IPC reads
as under:-

. ' "Whoever, having a husband or wife living, marries in any B
case in which such marriage is void by reason of its taking
place during the life of such husband or wife, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable·
to fine."
c
Whereas Section 495 of the IPC is as follows:-

"Whoever commits the offence defined in the last preceding
,J
section having concealed from.the person with whom the
subsequent marriage is contracted, the fact of the former D
marriage, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine."
As far as Section 494 IPC is concerned, the criminality
attaches to the act of second marriage either by a husband or E
by a wife who has a living wife or husband, in a case in which
second marriage is void by reason of its taking place during
the life of such husband or wife. When a law, such as Section
.. ' 11 of Hindu Marriage Act, 1955 declares that a second
marriage by a husband, who has living wife, with another woman F
is void, for breach of Section 5 (i) of the said Act, it brings/
attaches several legal disabilities to the woman with whom
second marriage is performed. Say for example, she would not
be entitled to claim maintenance from her husband even if she
.. is inhumanly treated, subjected to mental and physical cruelty G
of variety of kinds etc. and is not able to maintain herself. Law
of inheritance would prejudicially operate against her. She
herself would suffer outrageous, wrong and absurd social
stigma of being another woman in the life of the male who
contracts second marriage with her. The members of the cruel H
474 SUPREME COURT REPORTS f2011J 9 S.C.R.

A society including her kith and kin like parents, brother, sister ..
etc. would look down upon her and she would be left in lurch
by one and all. When a Court of law declares second marriage
to be void on a petition presented by husband who contracts
the second marriage on the ground that he has a spouse living
B at the time of marriage, it only brings untold hardships and j '

miseries in the life of the woman with whom second marriage
is performed apart from shattering her ambition to live a
comfortable life after marriage.

Having noticed the agony, trauma etc. which would be
c suffered by the woman with whom second marriage is
performed, if the marriage is declared to be void, let us make
an attempt to ascertain the purpose of enacting Section 494
IPC. This Section introduces monogamy which is essentially
voluntary union of life of-one man with one woman to the
D exclusion of all others. It enacts that neither party must have a
spouse living at the time of marri::ige. Polygamy was practiced
in many sections of Hindu society in ancient times. It is not a
matter of long past that in India, hypergamy brought forth
wholesale polygamy and along with it misery, plight and
E ignominy to woman having no parallel in the world. In post vedic
India a King could take and generally used to have more than
one wife. Section 4, of Hindu Marriage Act nullifies and
supersedes such practice all over India among the Hindus.
Section 494 is intended to achieve laudable object of
F monogamy. This object can be achieved only by expanding the ' •
meaning of the phrase "aggrieved person". For variety of
reasons the first wife may not choose to file complaint against
her husband e.g. when she is assured of re-union by her
husband, when husband assures to snap the tie of second
G marriage etc. Non-filing of the complaint under Section 494 IPC ~

by first wife does not mean that the offence is wiped out and
monogamy sought to be achieved by means of Section 494
IPC merely remains in statute book. Having regard to the
scope, purpose, context and object of enacting Section 494
H IPC and also the prevailing practices in the society sought to

,
A. SUBASH BABU v. STATE OF A.P.& ANR. 475
!'-" ~
[J.M. PANCHAL, J.]
be curbed by Section 494 IPC, there is no manner of doubt that A
the complainant should be an aggrieved person. Section
198(1)(c) of the Criminal Procedure Code, amongst other

. '
things, provides that where the person aggrieved by an offence
under Section 494 or Section 495 IPC is the wife, complaint
on her behalf may also be filed by her father, mother, sister,
son, daughter etc. or with the leave of the Court, by any other
B

person related to her by blood, marriage or adoption. In Gopal
Lal Vs. State of Rajasthan (1979) 2 SCC 170 this Court has
ruled that in order to attract the provisions of Section 494 IPC
both the marriages of the accused must be valid in the sense c
that the necessary ceremonies required by the personal law
governing the parties must have been duly performed. Though
Section 11 of the Hindu Marriage Act provides that any
,. marriage solemnized, if it contravenes the conditions specified
in Clause (i) of Section 5 of the said Act, shall be null and void,
D
it also provides that such marriage may on a petition presented
by either party thereto, be so declared. Though the law
specifically does not cast obligation on either party to seek
declaration of nullity of marriage and it may be open to the
parties even without recourse to the Court to treat the marriage
as a nullity, such a course is neither prudent nor intended and E
• a declaration in terms of Section 11 of the Hindu Marriage Act
will have to be asked for, for the purpose of precaution and/or
record. Therefore, until the declaration contemplated by Section
• .. 11 of the Hindu Marriage Act is made by a competent Court,
F
the woman with whom second marriage is solemnized
continues to be the wife within the meaning of Section 494 IPC
and would be entitled to maintain a complaint against her
husband.
.. Even otherwise, as explained earlier, she suffers several G
legal wrongs and/or legal injuries when second marriage is
treated as a nullity by the husband arbitrarily, without recourse
to the Court or where declaration sought is granted by a<.
competent Court. The expression "aggrieved person" denotes
an elastic and an elusive concept. It cannot be confined within H
476 SUPREME COURT REPORTS [2011] 9 S.C.R.
" .
A the bounds of a rigid, exact and comprehensive definition. Its
scope and meaning depends on diverse, variable factors such
as the content and intent of the statute of which contravention
is alleged, the specific circumstances of the case, the nature
and extent of complainant's interest and the nature and the
B extent of the prejudice or injury suffered by the complainant.
' .
Section 494 does not restrict right of filing complaint to the first
wife and there is no reason to read the said Section in a
restricted manner as is suggested by the learned Counsel for
the appellant. Section 494 does not say that the complaint for
commission of offence under the said section can be filed only
c by wife living and not by the woman with whom subsequent
marriage takes place during the life time of the wife living and
which marriage is void by reason of its taking place during the
life of such wife. The complaint can also be filed by the person
with whom second marriage takes place which is void by
D
reason of its taking place during the life of first wife.

A bare reading of the complaint together with statutory
provisions makes it abundantly clear that the appellaot having
a wife living, married with the respondent no. 2 herein by
E concealing from her the fact of former marriage and therefore
her complaint against the appellant for commission of offence
punishable under Section 494 and 495 IPC is, maintainable
and cannot be quashed on this ground.
• •
F To hold that a woman with whom second marriage is
performed is not entitled to maintain a complaint under Section
494 IPC though she suffers legal injuries would be height of
perversity.

11. Section 495 IPC provides that if a person committing
G the offence defined in Section 494 IPC conceals from the
person with whom subsequent marriage is contracted, the fact
of the former marriage, the said person is liable to punished
as provided therein. The offence mentioned in Section 495 IPC
is an aggravated form of bigamy provided in Section 494 IPC.
H The circumstance of aggravation is the concealment of the fact
A. SUBASH BABU v. STATE OF A.P.& ANR. 477

.., of the former 'marriage to the person with whom the second A
. [J.M. PANCHAL, J.]

marriage is contracted. Since the offence under Section 495
IPC is in essence bigamy, it follows that all the elements
necessary to constitute that offence must be present here also.
A married man who by passing himself off as unmarried induces
i j "
an innocent woman to become, as she thinks his wife, but in B
reality his mistress, commits one of the grossest forms of frauds
known to law and therefore severe punishment is provided in
Section 495 IPC. Section 495 begins with the words "whoever
commits the offence defined in the last preceding Section ....... ."
The reference to Section 494 IPC in Section 495 IPC makes c
it clear that Section 495 IPC is extension of Section 494 IPC
and part and parcel of it. The concealment spoken of in Section
495 IPC would be from the woman with whom the subsequent
_j
marriage is performed. Therefore, the wife with whom the
subsequent marriage is contracted after concealment of former D
marriage, would also -be entitled to lodge complaint for
commission of offence punishable under Section 495 IPC.
Where second wife alleges that the accused husband had
married her according to Hindu rites despite the fact that he
was already married to another lady and the factum of the first
E
marriage was concealed from her, the second wife would be
an aggrieved person within the meaning of Section 198 Cr.
P.C. If the woman with whom the second marriage is
performed by concealment of former marriage is entitled to file
;, ~
a complaint for commission of offence under Section 495 IPC,
there is no reason why she would not be entitled to file complaint F
under Section 494 IPC more particularly when Section 495 IPC
is extension and part and parcel of Section 494 IPC.
For all these reasons, it is held that the woman with whom
.. second marriage is contracted by suppressing the fact of former G
marriage would be entitled to maintain complaint against her
husband under Sections 494 and 495 IPC.
12. The argument that the learned Magistrate could not
have taken cognizance of offence punishable under Sections
H
478 SUPREME COURT REPORTS [2011] 9 S.C.R.

' .
A 494 and 495 IPC on \he basis of the police report i.e. charge
sheet. as those offences are non- cognizable and therefore, the
relief claimed in the petition filed before the High Court under
Section 482 of the Code should have been granted is devoid

B
of merits.

13. In this regard, it would be, relevant to notice the
' .
provisions of Article 246 of the Constitution. Article 246 deals
with subject matter of laws made by the Parliament and by the
legislatures of State. Clause (1) of Article 246 inter alia provides
that notwithstanding anything contained in Clauses (2) and (3)
c of Article 246, the Parliament has exclusive power to make laws
with respect to any of the maters enumerated in List 1 in the
Seventh Schedule. Sub-Clause 2 of the said Article provides
that notwithstanding anything in Clause (3), Parliament and
subject to Clause (1), the legislature of any State also have
D power to make laws with respect to any of the matters
enumerated in List 3 in the Seventh Schedule, whereas, Clause
(3) of Article 246 amongst other things provides that subject to
Clauses (1) and (2), the legislature of any State has exclusive
power to make laws for such State or any part thereof with
E respect to any of the matters enumerated in List 2 in the
Seventh Schedule. Entry 2 in List 3 i.e. Concurrent List in the
Seventh Schedule mentions "Criminal Procedure, including in
matters included in the Code of "Criminal procedure, at the
commencement of this Constitution". Thus there is no manner
F of doubt that Parliament and subject to Clause (1 ), the
• •
legislature of any State also has power to make laws with
respect to Code of Criminal Procedure. Section 2(c) of the
• Code of Criminal Procedure, 1973 defines the phrase
"Cognizable Offence" to mean an offence for which and
G "Cognizable Case" means a case in which, a Police Officer •
may, in accordance with the First Schedule or under any other
law for the time being in force arrest without warrant. Part I of
the First Schedule to the Code of Criminal Procedure, 1973
relating to offences under the Indian Penal Code inter alia
H mentions that Section 494 and 495 are non-cognizable. Section
A. SUBASH BABU v. STATE OF A.P.& ANR. 479
[J.M. PANCHAL, J.]
• •.J
154 of the Criminal Procedure Code relates to information in A
cognizable cases and provides inter alia that every information
relating to the commission of a cognizable offence, if given
orally to an Officer in charge of a Police Station, shall be
reduced to writing by him and be read over to the informant.
j, ·-J Section 156 of the Code provides that any Officer in charge of B
a Police Station may, without the order of a Magistrate,
investigate any cognizable case which a Court having
jurisdiction over a local area within the limits of such station
would have power to enquire into or try under provisions of
Chapter XIII of Criminal Procedure Code. As Sections 494 and c
495 are made non-cognizable, a Police Officer would not have
power to investigate those cases without the order of a
Magistrate, having a power to try such cases or commit such
cases for trial as provided under Section 155(2) of the Code.
.I

However, this Court finds that the Legislative Assembly of D
the State of Andhra Pradesh enacted the Code of Criminal
Procedure (Andhra Pradesh Second Amendment) Act, 1992.
By the said Amending Act, the First Schedule to Central Act 2
of 1974 i.e. the Code of Criminal Procedure, 1973 came to be
amended and against the entries relating to Section 494 in E
column 4 for the word "Ditto", the word "Cognizable" and in
column 5 for the word "Bailable" the word "Non-bailable" were
substituted. Similarly, against the entries relating to Section 495
in column 4, for the word "Ditto" the word "Cognizable" and in
~
column 5 for the word "Ditto", the word "Non-bailable" were F
"
substituted. What is relevant to be noticed is that the Code of
Criminal Procedure (Andhra Pradesh Second Amendment)
Act, 1992 was reserved by the Governor of Andhra Pradesh
on the 21st October, 1991 for consideration and assent of the
_, President. The Presidential assent was received on 10th G
February, 1992 after which the Code of Criminal Procedure
(Andhra Pradesh Second Amendment) Act, 1992 was
published on the 15th February, 1992 in the Andhra Pradesh
Gazette Part IV-B (Ext.). Thus there is no manne_r.of doubt that
Sections 494 and 495 IPC are cognizable offences so far as H
480 SUPREME COURT REPORTS [2011J 9 S.C.R.

A State of Andhra Pradesh is concerned. ••
14. Having noticed the amendment made by the
Legislative Assembly of the State of Andhra Pradesh regarding
Section 494 and 495 IPC, this Court proposes to consider the
B effect of assent given by the President on 10th February, 1992 ..
to the Code of Criminal Procedure (Andhra Pradesh Second
Amendment) Act, 1992. Article 254 of the Constitution reads
as under:-

"254 Inconsistency between laws made by Parliament and
c laws made by the Legislatures of States:-

(1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to
D any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject
to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made
by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the
E
Legislature of the State shall, to the extent of the
repugnancy, be void.

(2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the
F Concurrent List contains any provision repugnant to the • •
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has bee
reserved for the consideration of the President and has
G received his assent, prevail in that State.
Provided that nothing in this clause shall prevent
Parliament from enacting a law adding to, amending, varying
or repealing the law made by the legislature of the State".
H There is no manner of doubt that Amending Act of 1992
A. SUBASH BABU v. STATE OF A.P.& ANR. 481
.. ~
[J.M. PANCHAL, J.]

is on the subject which is already in existence in the Code of A
Criminal Procedure, 1973. However, in view of Clause (2) of
Article 254 of the Constitution, an undoubted power to legislate,

. ·\
of course subject to assent of the President on the subject
already in existence, is available to the State Legislature .
Clause (1) of Article 254 is operative subject to provisions of B
Clause (2). If a law passes a test of Clause (2), it will make
Clause (1) inapplicable to it. To the general rule laid down in
Clause (1), Clause (2) engrafts an exception, viz., that if the
President assents to a State Law which has been reserved for
his consideration as required by Article 200, it will prevail c
notwithstanding its repugnancy to an earlier law of Union. Clause
(2) provides· for curing of repugnancy which would otherwise
invalidate a State law which is inconsistent with a Central law
or an existing law. The clause provides that where the State
law has been reserved for the consideration of the President
D
and has received his assent, the State law would prevail in the
particular State notwithstanding its repugnancy to a Central law
or an existing law. Clause (2) comes info play only when (1)
the two laws in question deal with a matter in Concurrent List
(2) the State law has been made with the consent of the
E
President and (3) the provision of law made by Parliament was
earlier. When all these three conditions are satisfied, the law
made by the State Legislature will prevail. Where there is
inconsistency between laws made by Parliament and laws
... ..l
made by the State Legislature, the law made by the Parliament
shall prevail. If the State makes law enumerated in Concurrent F
List which contains provisions repugnant to the provision of an
earlier law made by the Parliament, the law so made by the
State if it receives assent of President will prevail in the State.
., When the State Act prevails under Article 254(2) over a Central
Act, the effect· is merely to supersede the Central Act or to G
.eclipse it by the State Act. In short, the result of obtaining the
assent of the President to a State Act which is inconsistent with
a previous Union Law relating to a concurrent subject would be
that the State Act will prevail in that State and overrule the
provisions of the Central Act, in that State. H
482 SUPREME COURT REPORTS [2011] 9 S.C.R.

A In view of the above settled legal position, this Court has ' '
no doubt that the amendment made in the First Schedule to the
Code of Criminal Procedure, 1973 by the Code of Criminal
Procedure (Andhra Pradesh Second Amendment) Act, 1992,
shall prevail in the State of Andhra Pradesh, notwithstanding
B the fact that in the Criminal Procedure Code, 1973 offences
I 4

under Section 494 and 495 are treated as cognizable offences.
The reasoning given by the Division Bench of High Court of
Andhra Pradesh in Mavuri Rani Veera Bhadranna (supra) that
though the State Legislation amended the Schedule making the
c offence under Section 494 IPC cognizable, the legislation
made by the Parliament i.e. Section 198 of the Criminal
Procedure Code remains and in the event of any repugnancy
between the two legislations, the legislation made by the
Parliament would prevail, because, Section 198 of the Criminal
Procedure Code still holds the field despite the fact that the
D
State Legislation made amendment to the Schedule of
Criminal Procedure Code, with respect, is erroneous and
contrary to all cannons of interpretation of statute. Once First
Schedule to the Code of Criminal Procedure, 1973 stands
amended and offences punishable under Sections 494 and
E 495 IPC are made cognizable offences, those offences will
have to be regarded as cognizable offences for all purposes
of the Code of Criminal Procedure, 1973 including for the
purpose of Section 198 of the Criminal Procedure Code.
Section 198(1)(c), after the Amendment made by the Code of ... •
F Criminal Procedure(Andhra Pradesh Second Amendment) Act,
1992 cannot be interpreted in isolation without referring to the
fact that offences under Sections 494 and 495 IPC have been
made cognizable so far as the State of Andhra Pradesh is
concerned. Therefore, the provision made in Section 198(1)(c)
G that no Court shall take cognizance of an offences punishable "'
under Chapter XX of the IPC except upon a complaint made
by some person aggrieved will have to be read subject to the
amendment made by the Legislative Assembly of the State of
Andhra Pradesh in 1992. Once, it is held that the offences under
H Section 494 and 495 IPC are cognizable offences, the bar
A. SUBASH BABU v. STATE OF A.P.& ANR. 483
[J.M. PANCHAL, J.]
,_ ""
imposed by operative part of sub-section 1 of Section 198 of A
the Criminal Procedure Code beginning with the words "No
Court shall take cognizance of an offence punishable under
Chapter XX of the Indian Penal Code except upon a complaint
made by some person aggrieved by the offence" gets lifted so
I 1,
far as offences punishable under Sections 494 and 495 IPC B
are concerned. As those offences have been made cognizable
offences in the State of Andhra Pradesh since 1992, the same
will have to be dealt with as provided in the Section 156 which
inter alia provides that any officer in charge of a Police Station,
may without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local
c
area within the limits of such station would have power to
enquire into or try under the provisions of Chapter XIII. Even
without the authorization under Section 155(2) or Section
J
156(3) of Criminal Penal Code, offences under Sections 494,
D
495 and 496 having been rendered cognizable and non-
bailable by virtue of the Criminal Procedure Code (Amendment
Act, 1992) can be investigated by the Police and no illegality
is attached to the investigation of these offences by the police.
If the Police Officer in charge of a Police Station is entitled to
investigate offences punishable under Section 494 and 495 E
IPC, there is no manner of doubt that the competent Court
would have all jurisdiction to take cognizance of the offences
after receipt of report as contemplated under Section 173(2)
>- _; of the Code. Thus, this Court finds that correct proposition of
law was not laid down in Mavuri Rani Veera Bhadranna F
(supra) when the Division Bench of the Andhra Pradesh High
Court in the said case held that as Section 198 of Criminal
Procedure Code still holds the field despite the amendment
made by State Legislature, the Court would have no jurisdiction
...
to take cognizance of an offence punishable under Section 494 G
IPC on the basis of report submitted by the Investigating Officer.
Even if it is assumed for the sake of argument that in view of
Section 198(1 )(c) of the Code of Criminal Procedure, the
Magistrate is disentitled to take cognizance of the offences
punishable under Sections 494 and 495 IPC despite the State H
484 SUPREME COURT REPORTS f2011J 9 S.C.R.

A amendment making those offences cognizable, this Court
..
notices that in Mavuri Rani Veera Bhadranna (supra), the
Division Bench has considered effect of Section 155(4) of the ·
Criminal Procedure Code and thereafter held that the bar under
Section 198 would not be applicable as complaint lodged
B before police for offence under Section 494 IPC also related
to other cognizable offences and if police files a charge sheet,
. ...

the Court can take cognizance also of offence under Section
494 along with other cognizable offences by virtue of Section
155 (4) of the Criminal Procedure Code.
c 15. Section 155(4) of the Code inter alia provides that:-

"Where a case relates to two or more offences of which
at least one is cognizable, the case shall be deemed to
be a cognizable case, notwithstanding that the other
D offences are non-cognizable"
Here in this case in the charge sheet it is mentioned that
the appellant has also committed offence punishable under
Section 420 of the Indian Penal Code which is cognizable and
therefore this is a case which relates to two or more offences
E
of which at least one is cognizable and therefore the case must
be deemed to be cognizable case notwithstanding that the
other offences are non- cognizable. This is not a case in which
the FIR is exclusively filed for commission of offences under
Sections 494 and 495 IPC. The case of the respondent no. 2 ~ •
F is that the appellant has committed offences punishable under
Sections 417, 420, 494, 495 and 498A of the IPC. A question
may arise as to what should be the procedure to be followed
by a complainant when a case involves not only non- cognizable
offence but one or more cognizable offences as well. It is
G somewhat anomalous that the aggrieved person by the alleged
commission of offences punishable under Sections 494 and
495 IPC should file complaint before a Court and that the same
aggrieved person should approach the police officer for alleged
commission of offences under Sections 417, 420 and 498A of
H the Indian Penal Code. Where the case involves one
., . A. SUBASH BABU v. STATE OF A.P.& ANR.
[J.M. PANCHAL, J.]
cognizable offence also alongwith non-cognizable offences it
485

A
'
should not be treated as a non- cognizable case for the
purpose of sub-section 2 of Section 155 and that is the intention
of legislation which is manifested in Section 155(4) of the Code
of Criminal Procedure. Therefore, the argument that the learned
-" ·~
Magistrate could not have taken cognizance of the offences B
punishable under Sections 494 and 495 IPC on the basis of
submission of charge sheet, cannot be accepted and is hereby
rejected.

16. This Court finds that the High Court has quashed the
proceedings pending before the learned Magistrate under
c
Section 498A of IPC on the spacious ground that the marriage
of the appellant with the respondent no. 2 is void and as
, respondent no. 2 is not the wife, she was not entitled to lodge
first information report with the police for commission of offence·.
u/s. 498A IPC and on the basis of police report, cognizance of D
the said offence against the appellant could not have been taken
by the learned Magistrate. Such reasoning is quite contrary to
the law declared by this Court in Reema Aggarwal Vs. Anupam
and others (2004) 3 sec 199. After examining the scope of
Section 498A of the Indian Penal Code and holding that a E
person who enters into marital arrangement cannot be allowed
to take shelter behind the smoke screen of contention that
since there was no valid marriage the question of dowry does
, .; not arise, this Court speaking through Hon'ble Mr. Justice Arijit
F
Pasayat, has held as under:-
"Such legalistic niceties would destroy the purpose of the
provisions. Such hairsplitting legalistic approach would
encourage harassment to a woman over demand of
-i money. The nomenclature "dowry" does not have any G
magic charm written over it. It is just a label given to
demand of money in relation to marital relationship. The
legislative intent is clear from the fact that it is not only the
husband but also his relations who are covered by Section
498A. The legislature has taken care of children born from
H
486 SUPREME COURT REPORTS [2011] 9 S.C.R.
.'
A invalid marriages. Section 16 of the Marriage Act deals
with legitimacy of children of void and voidable marriages.
Can it be said that the legislature which was conscious of
the social stigma attached to children of void and voidable

8
marriages closed its eyes to the plight of a woman who
unknowingly or unconscious of the legal consequences
' .
entered into the marital relationship? If such restricted
meaning is given, it would not further the legislative intent.
On the contrary, it would be against the concern shown by
the legislature for avoiding harassment to a woman over
c demand of money in relation to marriages. The first
exception to Section 494 has also some relevance.
According to it, the offence of bigamy will not apply to "any
person whose marriage with such husband or wife has
been declared void by a court of competent jurisdiction". It
would be appropriate to construe the expression "husband"
D
to cover a person who enters into marital relationship and
under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or
coerces her in any manner or for any of the purposes
enumerated in the relevant provisions- Sections 3048/
E 498A, whatever be the legitimacy of the marriage itself for
the limited purpose of Sections 498A and 3048 IPC. Such
an interpretation, known and recognized as purposive
construction has to come into play in a case of this nature.
The absence of a definition of "husband" to specifically
Jo. •
F include such persons who contract marriages ostensibly
and cohabit with such woman, in the purported exercise
of their role and status as "husband" is no ground to
exclude them from the purview of Section 3048 or 498A
IPC, viewed in the context of the very object and aim of the ~

G legislations introducing those provisions."

. 17. In view affirm and clear law laid down on the subject,
this Court is of the confirmed view that the High Court was not
justified at all in quashing the proceedings initiated against the
H appellant under Section 498A of the Code on the ground that
A. SUBASH BABU v. STATE OF A.P.& ANR. 487
..l-- •.., [J.M. PANCHAL, J.]
the respondent no. 2 was not wife within the meaning of Section A
498A of the IPC and was not entitled to maintain complaint
under the said provision. The question therefore which arises
for consideration of the Court is whether the said finding
" ~ recorded by the High Court can and should be set aside in the
present appeal which is filed by the husband. It was argued by B
the learned Counsel for the appellant that quashing of
proceedings with reference to offence punishable under
Section 498A of Indian Penal Code is neither challenged by
the State Government nor by the original complainant before
this Court and the same having attained finality, the same cannot c
be disturbed in an appeal filed by the husband appellant in
which grievance is made regarding non-grant of relief in full by
the High Court .
.,
j

18. This Court does not find any substance in the above
mentioned argument of the learned Counsel for the appellant. D
The law declared by this Court in case of Reema Aggarwal
(Supra) was binding on all Court including the learned Single
Judge of High Court of A.P. who decided the present case in
view of salutary provisions of Article 141 of the Constitution. The
learned Single Judge of the High Court could not have afforded E
to ignore the law declared by this Court in Reema Aggarwal
(Supra) while considering the question whether proceedings

.. ~
initiated by the respondent no. 2 for commission of offence
punishable under Section 498A of IPC should be quashed or
not. The High Court has completely misdirected itself in F
quashing the proceedings for the offence punishable under
Section 498A of IPC. There is no manner of doubt that the
finding recorded by the High Court that the respondent no. 2 is
,;
not the wife within the meaning of Section 498A of the Indian
Penal Code runs contrary to law declared by this Court in case G
of Reema Aggarwal (Supra). There may be several reasons
due to which the State might not have challenged that part of
the Judgment of the learned Single Judge quashing the
complaint filed by the respondent no. 2 under Section 498A of
the Indian Pena\ Code. So also because of several reasons H
488 SUPREME COURT REPORTS [2011] 9 S.C.R.
.'
A such as want of funds, distance, non-availability of legal advice,
etc. the original complainant might not have approached this
Court to challenge that part of the judgment of the learned Single
Judge which is quite contrary to the law declared by this Court.
However, this Court while entertaining an appeal by grant of ••
B special leave has power to mould relief in favour of the
respondents notwithstanding the fact that no appeal is filed by
any of the respondents challenging that part of the order which
is against them. To notice an obvious error of law committed
by the High Court and thereafter not to do anything in the matter
c would be travesty of justice. This Court while disposing of an
appeal arising out of grant of special leave can make any order
which justice demands and one who has obtained illegal order
would not be justified in contending before this Court that in
absence of any appeal against illegal order passed by the High
Court the relief should not be appropriately moulded by the
D Court or that the finding recorded should not be upset by this
Court.

19. In Chandrakant Patil Vs. State (1998) 3SCC 38, even
in absence of an appeal by Government specifically for that
E purpose and in absence of revisional power as is available to
High Court and Sessions Court, under Criminal Procedure
Code, this Court held that the Supreme Court has power under
Article 142 read with Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 to enhance the sentence for
F doing complete justice in the matter that in the circumstances
of the case appeared to it, to be too inadequate. In the said
case it was contended that the Supreme Court has no power
to enhance sentence in the absence of an appeal by the
Government presented specifically for that purpose more so
G because Supreme Court has no revisional powers which the
High Court and Court of Sessions are conferred with by the
Criminal Procedure Code. While negativating the said
contention this Court has firmly ruled that powers of the
Supreme Court in appeals filed under Article 136 of the
. H Constitution are not restricted by the appellate provisions
A. SUBASH BABU v. STATE OF A.P.& ANR. 489
[J.M. PANCHAL, J.)

' ' enumerated under the Code of Criminal Procedure or any other A
·· statute. What is held as firm proposition of law is that when
exercising appellate jurisdiction the Supreme Court has power
to pass any order. The power under Article 136 is meant to
supplement the existing legal frame work. It is conceived to
~ -', meet situations which cannot be effectively and appropriately B
tackled by the existing provisions of law. Though challenge was
not made by any of the two respondents to the finding recorded
by the learned Single Judge that the complaint lodged by the
respondent no. 2 for alleged commission of offence punishable
under Section 498A of the Indian Penal Code is not c
maintainable because she is not a wife, this Court feels that
absence of challenge either by State or by the original
complainant should not persuade or prevent this Court from
doing justice between the parties by restoring the complaint filed
, by the respondent no. 2 under Section 498A of the Indian Penal
0
Code on the file of the learned Magistrate. The conclusion
arrived at by the High Court is such as to shake the conscience
and sense of justice and therefore it is the duty ofthis Court to
strike down the finding recorded with respect to the offence
punishable under Section 498A, irrespective of technicalities. E
The judgment of the High Court quashing the proceedings
initiated by the learned Magistrate for commission of offence
punishable under Section 498A is tainted with serious legal
infirmities and is founded on a legal construction which is
~ wrong. So the technical plea advanced by the learned counsel
for the appellant that in absence of appeal by any of the F
respondents, quashing of proceedings with respect to the
offence punishable under Section 498A IPC, cannot be set
aside, is hereby rejected. As held in Ramakant Rai Vs. Madan
Rail (2003) 12 SCC 395 following Arunachalam Vs. P.S.R.
,. Sadanatham (1979) 2 SCC 297 and P.S.R. Sadanatham Vs. G
Arunchalam (1980) 3 SCC 141, the appellate power vested
in the Supreme Court under Article 136 is not to be confused
with the ordinary appellate power exercised by appellate Courts
and appellate Tribunals under specific statutes. It is plenary
power exercisable outside the purview of ordinary law to meet H
490 SUPREME COURT REPORTS [2011] 9 S.C.R.

A. the demand of justice. Article 136 is a special jurisdiction. It is
residuary power. It is extraordinary in its amplitude. The limits
of Supreme Court when it chases injustice, is the sky itself.
Further, the powers under Article 136 can be exercised by the
Supreme Court, in favour of a party even suo motu when the
B Court is satisfied that compelling grounds for its exercise exist.
Where there is manifest injustice, a duty is enjoined upon this
Court to exercise its suo motu power by setting right the
illegality in the judgment of the High Court as it is well settled
that illegality should not be allowed to be perpetuated and
c failure by this Court to interfere with the same would amount to
allow illegality to be perpetuated. When an apparent irregularity
is found by this Court in the order passed by the High Court,
the Supreme Court cannot ignore substantive rights of a litigant
while dealing with the cause pending before it. There is no
reason why the relief cannot be and should not be appropriately
0
moulded while disposing of an appeal arising by grant of
special leave under Article 136 of the Constitution.

20. Therefore. that part of the impugned judgment by which
the complaint filed by the respondent no. 2 under Section 498A
E of the Indian Penal code is quashed by the High Court will have
to be set aside while disposing the appeal filed by the
appellant.

21. For the foregoing reasons, the appeal filed by the
F appellant fails and therefore the same is hereby dismissed. The
impugned Judgment quashing the complaint filed by the
respondent no. 2 for alleged commission of offence by the
appellant under Section 498A IPC, is hereby set aside and the
complaint lodged by the respondent no. 2 under Section 498A
G of the Indian Penal Code as well as charge sheet submitted •
by the Investigating Officer for the same shall stand restored/
revived. Subject to above mentioned direction the appeal
stands disposed of.
R.P. Appeal disposed of.
H